Norris v. Manning, CUMcv-05-327 (Cumberland Super. CT., 2006)

STATE OF MAINE STATE OF MA,^^ SUPERIOR COURT
CUMBERLAND, ss. s,c \ ~ Offi@VIL

S ACTION
S U p ~ O COURT
Cumber\and9 R DOCKET NO: CV-05-327
1 iyq,
- r .;
SE? I 2006
CHRISTOPHER NORRIS
Plaintiff R~~~lVED
ORDER ON DEFENDANTS'
MOTION FOR SUMMARY
JUDGMENT
v.
DONALD L. GARBRECHT
LAW LIBRARY
JOE MANNING, et al.
Defendants
OCT 2 7 2006
This case comes before the Court on Defendants' Motion for Summary
Judgment pursuant to M.R. Civ. P. 56. Defendants' Motion is DENIED.
BACKGROUND
Christopher Norris ("Norris") was Brunswick Ford's ("Ford") body shop
manager from begnning in July 2004. In January 2005, Norris accepted a job
offer from Lee of Auburn ("Lee"), another dealership, which was contingent
upon a background check and salary negotiations. Norris notified Ford that he
was leaving on or about January 17,2005, and Ford employees unsuccessfully
attempted to dissuade h m . On January 19, 2005, his supervisor, Joe Manning
("Manning"), called the Brunswick Police, accusing Norris of inappropriately
handling an insurance claim and stealing gasoline. The Brunswick Police asked
Norris to come to the station to discuss "insurance fraud" and theft of gasoline,
but did not arrest h m . This accusation related to Norris' use of Ford's gas
account, whch he had thought was routine practice, and an insurance claim that
he filed when his truck was keyed. After having h s car repaired, Norris had
used the remaining insurance proceeds to fix his girlhend's vehicle. The
insurance company informed police that after Norris' velucle was fixed, any
remaining funds could be used however Norris wished, and that h s was not
fraudulent. The Brunswick Police never filed any criminal charges against
Norris, which surprised Manning.
After discussing h s situation with lus prospective employer, Norris was
told not to worry. Soon afterwards, however, following a call from Manning,
Lee rescinded its offer of employment. Norris claims that Manning falsely told
Lee that he had been arrested; Manning and Lee deny this allegation. He
contends that he has since been unable to secure similar employment and that
insurance companies with which he dealt at the body shop somehow have
become aware of the Ford incident.
Norris filed a complaint for interference with contractual or advantageous
economic relations, slander per se, and defamation. In response, Manning and
Ford cited nineteen affirmative defenses and filed several counterclaims.
Manning and Ford have filed this motion for summary judgment on all counts of
Norris' complaint, contending that Noms has failed to prove causation.'
DISCUSSION
1. Summary iudament standard.
Summary judgment is proper where there exist no genuine issues of
material fact such that the moving party is entitled to judgment as a matter of
law. M.R. Civ. P. 56(c); see also Levine v. R.B.K. Caly Corp., 2001 ME 77, q[4, 770
Defendants' Motion for Summary Judgment seeks judgment on "all claims in Plaintiff's
Complaint," but the briefing and oral argument primarily addressed the interference and slander
claims. Because the motion and memoranda refer to all claims, however, the Court will also
address defamation.
A.2d 653,655. A genuine issue is raised "when sufficient evidence requires a
fact-finder to choose between competing versions of the truth at trial." Parrish v.
Wright, 2003 ME 90, 98,828 A.2d 778, 781. A material fact is a fact that has "the
potential to affect the outcome of the suit." Burdzel v. Sobus, 2000 ME 84, ¶6, 750
A.2d 573,575. "If material facts are disputed, the dispute must be resolved
through fact-finding." Curtis v. Porter, 2001 ME 158, ¶7, 784 A.2d 18, 22. When a
defendant seeks summary judgment, a "plaintiff must establish a prima facie
case for each element of her cause of action." Champagne v. Mid-Maine Med. Ctr.,
1998 ME 87, ¶9,711 A.2d 842,845. At this stage, the facts are reviewed "in the
light most favorable to the nonmoving party." Lightfoot v. Sch. Admin. Dist. No.
35,2003 ME 24, ¶6,816 A.2d 63/65.
2. Interference with contractual or advantageous economic relations.
For an actionable claim of interference, there must be "a valid contract or
prospective economic advantage" interfered with "through fraud or
intimidation," proximately causing harm. Barnes v. Zappia, 658 A.2d 1086,1090
(Me. 1995). Norris has alleged that Lee gave him a conditional offer of
employment, that he informed Ford and Ford tried to dissuade h m from
leaving, and that Manning called Lee to discuss Norris1alleged offenses.
Subsequently, Lee rescinded its offer. Manning and Ford argue that they did not
proximately cause Lee to withdraw the employment offer; Norris contends that
he did not lose that opportunity until Manning placed the call. Whether
Manning's actions actually interfered with Norrisl job offer is an issue for the
finder of fact; thus, summary judgment on tlus claim is unwarranted.

3. Slander per se.
"Slander per se refers to words that on their face without further proof or
explanation injure the plaintiff in h s business or occupation." Ramirez v. Rogers,
540 A.2d 475,478 (Me. 1988). Given the nature of the injury, a "plaintiff may
recover without proof of special damage." Id. For example, a plaintiff prevailed
where her employer implied that she "misused company funds and engaged in
dishonest and unethical acts" because this "unquestionably tends to injure her in
her profession." Marston v. Nezuavom, 629 A.2d 587,593 (Me. 1993). The Law
Court affirmed a verdict in her favor, as "[tlhe evidence support[ed] a claim for
slander per se." Id.
Similarly, Norris has alleged that Manning's conversation with Lee
concerned his employmenf and that it tended to injure h m professionally. If
Norris1 version of events is accurate, as the Court assumes it is at this stage, he
has created a triable issue on the slander claim because Manning's statement
struck directly at Norris1professional conduct in a job that was almost exactly
the same as the one he had accepted with Lee.
A central thrust of Manning and Ford's argument is that because Norris
relayed some of the circumstances to his future employer himself, he has not
established that any republication by the defendants actually caused him
damages. But, because Manning's communications may have affected Norris1
employment, damages will be presumed if the fact finder determines that they
were indeed slanderous. The content and effect of the statements are questions
* Manning concedes that Lee did not contact him; he decided to contact Lee because he wanted
"to let [them] know what happened at Brunswick Ford." Manning deposition, p. 51, line 16.
Manning knew prior to this call that Norris would be leaving his dealership to work at Lee.
of fact, and summary judgment is inappropriate on this basis.
4. Defamation claim.
A successful defamation claim rests on the publication of false statements
of fact by an unprivileged person that harms one's reputation. Ballard v. Wagner,
2005 ME 86, ¶lo, 877 A.2d 1083,1087. Here, Norris has alleged that Manning
and Ford published false statements of fact about h m to his detriment, and some
facts tend to support that claim. It is possible that Manning did more than repeat
h s allegations of insurance fraud and theft of gas3 But, both sides still debate
exactly what Manning said, and whether h s comments actually were false and
harmful remains in contention. These are genuine issues of material fact.
Additionally, Manning and Ford claim that they are entitled to immunity
for their comments to Lee.4 Maine law provides that employers who relate
information about a "former employee's job performance" to a potential
employer are "presumed to be acting in good faith" and may not be held civilly
liable for any statements made or for the consequences of those statements. 26
M.R.S.A. §598 (2005). This presumption may be rebutted by clear and
convincing evidence. Id. Viewing the matter in the light most favorable to the
plaintiff, Norris has generated a triable issue regarding whether Manning's
comments were made in good faith, especially if, as Norris claims, they included
misleading characterizations- a fact that Lee and Manning dispute. Norris may
3
Indeed, in his deposition, Lee CEO John Isaacson recounted a conversation with Mark Gordon,
the employee who hired Norris, in which Isaacson said that "Joe Manning just called Don Lee
and said that Chris has some legal trouble at the dealership and that he recommends that we
don't hire him." Isaacson deposition, p. 7, lines 23-25.
The defendants also raise the issue of immunity for the statements they made to police. See
Roche v. Egan, 433 A.2d 757,765 (Me. 1981). Any such immunity is irrelevant, however, because
the statements that defendant Manning made to the police are not the primary subject of this
lawsuit. Instead, this suit focuses on statements made to others in the automotive and insurance
industries that may have impacted Norris' employment.
well be able to rebut the presumption and has produced some evidence in that
regard; therefore, employer immunity is not dispositive of h s claims.
Finally, Manning and Ford claim that Norris' own publication of the
statements to Lee caused lum to lose the job. But, as noted above, the record
reveals some dispute about the effect of Norris' comments. In his deposition,
Norris claims that he told Lee about Manning's allegations so that they heard it
first from h m and not from someone else. Following that conversation, Lee did
not immediately revoke its offer. The offer was rescinded after Manning spoke
with the owner of the dealership and, Norris contends, mischaracterized h m as
having been arrested. Lee refers to Norris' "arrest" as decisive in lus deposition,
though he also says that mere allegations could have been enough to cause him
to rescind the offer because he was luring Norris for a similar position. But, h s
Court must focus on what actually occurred, and Lee revoked its offer after
spealung with Manning. This generates a triable issue as to causation. In
addition, Norris testified in his deposition that insurance companies with which
he had not spoken were somehow aware of the situation. Because both sides
"published" the information, it remains for the jury to determine the effect of the
respective publications.' The defendants are not entitled to summary judgment
on the defamation claim.
Genuine issues of material fact remain on all claims regarding the nature
and effect of statements made about Norris by Manning and Ford personnel.
"The issue of publication is a question of fact for the jury." Bakal v. Weare, 583 A.2d 1028,1029
(Me. 1990) (citing Restatement 2d of Torts 5617). In Bakal, the Court was discussing to whom
publication was made, but its analysis is applicable to the debate regarding the effect of
publication in this case.
The entry is:
Defendants' motion for summary judgment is DENIED.
DATE:
COURTS
id County
IX 287
e 041 12-0287
GUY LORANGER ESQ

1 1 0 MAIN STREET SUITE 1 5 2 0
SAC0 ME 0 4 0 7 2
: COURTS
nd County
IX 287
e 041 12-0287
BRENDAN RIELLY ESQ

PO BOX 4 5 1 0
PORTLAND ME 0 4 1 1 2

Norris v. Manning, CUMcv-05-327 (Cumberland Super. CT., 2006)

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STATE OF MAINE STATE OF MA,^^ SUPERIOR COURT

CUMBERLAND, ss. s,c \ ~ Offi@VIL

Judgment pursuant to M.R. Civ. P. 56. Defendants' Motion is DENIED.

Christopher Norris ("Norris") was Brunswick Ford's ("Ford") body shop

was leaving on or about January 17,2005, and Ford employees unsuccessfully

attempted to dissuade h m . On January 19, 2005, his supervisor, Joe Manning

("Manning"), called the Brunswick Police, accusing Norris of inappropriately

Norris, which surprised Manning.

After discussing h s situation with lus prospective employer, Norris was

become aware of the Ford incident.

Norris filed a complaint for interference with contractual or advantageous

Ford cited nineteen affirmative defenses and filed several counterclaims.

Norris' complaint, contending that Noms has failed to prove causation.'

1. Summary iudament standard.

Summary judgment is proper where there exist no genuine issues of

fact-finder to choose between competing versions of the truth at trial." Parrish v.

defendant seeks summary judgment, a "plaintiff must establish a prima facie

35,2003 ME 24, ¶6,816 A.2d 63/65.

2. Interference with contractual or advantageous economic relations.

For an actionable claim of interference, there must be "a valid contract or

prospective economic advantage" interfered with "through fraud or

intimidation," proximately causing harm. Barnes v. Zappia, 658 A.2d 1086,1090

employment, that he informed Ford and Ford tried to dissuade h m from

leaving, and that Manning called Lee to discuss Norris1alleged offenses.

finder of fact; thus, summary judgment on tlus claim is unwarranted.

explanation injure the plaintiff in h s business or occupation." Ramirez v. Rogers,

slander per se." Id.

Similarly, Norris has alleged that Manning's conversation with Lee

concerned his employmenf and that it tended to injure h m professionally. If

Norris1 version of events is accurate, as the Court assumes it is at this stage, he

struck directly at Norris1professional conduct in a job that was almost exactly

the same as the one he had accepted with Lee.

A central thrust of Manning and Ford's argument is that because Norris

established that any republication by the defendants actually caused him

damages. But, because Manning's communications may have affected Norris1

A successful defamation claim rests on the publication of false statements

of fact by an unprivileged person that harms one's reputation. Ballard v. Wagner,

harmful remains in contention. These are genuine issues of material fact.

information about a "former employee's job performance" to a potential

M.R.S.A. §598 (2005). This presumption may be rebutted by clear and

plaintiff, Norris has generated a triable issue regarding whether Manning's

regard; therefore, employer immunity is not dispositive of h s claims.

with the owner of the dealership and, Norris contends, mischaracterized h m as

spealung with Manning. This generates a triable issue as to causation. In

respective publications.' The defendants are not entitled to summary judgment

on the defamation claim.

Defendants' motion for summary judgment is DENIED.

GUY LORANGER ESQ

BRENDAN RIELLY ESQ

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